Ramprasad Balmiki Vs.
Anil Kumar Jain & Ors. [2008] INSC 1682 (1 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5949 OF 2008 (Arising
out of SLP (C) No. 17058 of 2006) RAMPRASAD BALMIKI ... APPELLANT Versus
S.B. Sinha, J.
1.
Leave
granted.
2.
Appellant
was working as a driver with the Cantonment Board, Gwalior. On or about
14.5.1997, he was riding on a two-wheeler. A Tempo bearing No. MIH-7952 was
allegedly being driven by the first respondent rashly and negligently; it
collided with the two-wheeler of the appellant. Appellant sustained a fracture
in his right femur bone as also 2 tibia bone of his right leg. He was
hospitalized. Allegedly, he underwent three operations. The right leg of the
appellant is said to have been shortened. He filed a claim petition before the
Motor Accident Claims Tribunal in terms of Section 166 of the Motor Vehicles
Act, 1988 (for short, "the Act") claiming a sum of Rs. 17.94 lakhs
for sustaining permanent disability in his right leg, loss of service, loss of
leave, deficiency and expenses in treatment, etc.
Long after the said
accident took place as also after the filing of the claim petition, he was
referred to the Civil Surgeon, Gwalior for medical check up. Allegedly, the
Civil Surgeon declared him unfit to drive a vehicle pursuant whereto an order
of premature retirement from service on medical ground was passed by the
authorities of the Cantonment Board. The driver and the owner of the vehicle
indisputably did not contest the claim.
The Insurance
Company, however, filed a written statement, inter alia, raising a contention
that as the appellant had obtained a discharge from J.A. Hospital without
permission of Medical Officer and undertaken treatment from other doctors, he
was himself responsible for the sorry state of affairs. It was furthermore
denied and disputed that he had sustained any permanent disability. A
contention was also raised that the accident had taken place due to his own
negligence.
1.
2.
On the said pleadings
of the parties, the Tribunal, inter alia, framed the following issues.
"1. Whether
driver Non-applicant No. 1 of Non applicant No. 2 by driving rashly and
negligently Tempo No. MIH-7952 has caused the accident?
2. Whether because of
accident the applicant sustained severe injuries and permanent disability on
different party of his body?
3. Whether applicant
is entitled to receive severally and jointly compensation of Rs.17,94,000/-
from Non-applicants? The issues Nos. 1 and 2 were answered in the affirmative.
So far as the
question relating to the amount of compensation to which the appellant claimed
himself to be entitled to, is concerned, it was recorded that he had not
sustained any kind of permanent disability and, thus, was not entitled to any
amount on that count. As regards the issue that he had been made to retire from
service having been found to be unfit to drive a vehicle, the learned Tribunal
opined:
"In the cross
examination AW-4 Satish Dixit has stated that complete information regarding
retirement is mentioned in the Pension Register which has been sent to
department. From the statement of this witness it appears that after retirement
the applicant will receive pension. In the departmental evidence the applicant
has not 4 made it clear that there was any chance of his promotion in future,
which has come to an end now, therefore on the basis of Rs.5,000/- per month
salary claimed for 20 years, the amount of compensation which the petitioner
has claimed, he is not entitled for the same. In case if the applicant would
have made it clear that after retirement how much pension he will get and after
reducing the same how much difference per month will come, in such
circumstances, proper amount of compensation can be calculated. Since in the
case it has not been established that to do any work the applicant has rendered
completely disabled and when it is found that after retirement he will get the
pension, in such circumstances on the basis of permanent disability no amount
as claimed for compensation for the same can be allowed but because of actual
loss sustained by him some amount should be allowed to him and the same will
have to be decided on the basis of best judgment keeping in view his monthly
salary. As such after retirement, the loss of salary which the petitioner will
have to bear, keeping in view the age of the applicant, the amount of
compensation is fixed at Rs.30,000/-.
An award for a sum of
Rs. 85,000/- was passed by the Tribunal.
The High Court,
however, on an appeal preferred by the appellant herein against the said
judgment enhanced the amount of compensation to Rs. 3,75,000/- opining that
even as per the certificate issued by the Medical Board, the extent of
permanent disability suffered by him was 40%, holding:
5 "Even
assuming that the doctors have not proved any permanent disability, still it
has come on record from the statement of Satesh Dixit AW-4 that the present
appellant was retired from the services due to the said injury in the year 2001
i.e. after a period of two years as he was declared unfit for driving the
vehicle.
Considering this
fact, it cannot be said that there is no permanent loss to the earning capacity
of the appellant and we assess the loss of earning capacity to the extent of
40%.
3. Mr. Ankur Mody,
learned counsel appearing on behalf of the appellant would submit that both the
Tribunal as also the High Court have committed a serious error insofar as they
failed to take into consideration that `total disablement' would mean
`disablement from doing his job in which he was engaged'. Strong reliance in
this behalf has been placed by the learned counsel in Pratap Narain Singh Deo
v. Srinivas Sabata & Anr. [(1976) 1 SCC 289]. It was furthermore submitted
that in any event the High Court should have granted a higher amount of
compensation keeping in view loss of his future prospect.
4. Mr. R.C. Mishra,
learned counsel appearing on behalf of the respondents, on the other hand,
would contend that in absence of any statute or statutory rule or any other
material, the functional disability would be the same as loss of earning
capacity, and in that view of the matter, once the structured formula is
applied for the purposes of 6 computing the amount of compensation, what is
relevant is not only the income earned by the appellant but also the extent of
purported disability suffered by him, that is, the multiplicand and as in this
case the correct multiplier has been applied, the impugned judgment warrants no
interference.
5. Appellant filed an
application in terms of Section 166 of the Act and not in terms of Section 163A
thereof. It is not a case where even the Workmen's Compensation Act, 1923 (for
short, "1923 Act") was applicable.
6. The jurisdiction of
the Tribunal to make an award is confined to determination of the kind of
compensation which appears to it to be just.
The jurisdiction
exercised by the Tribunal in terms of Section 163A and Section 166 of the Act
is different. This distinction has been noticed by this Court in Rajesh Kumar @
Raju v. Yudhvir Singh & Anr. [2008 (8) SCALE 497] holding:
7. The claim petition
was filed under Section 166 of the Act and not under Section 163A thereof. It
was contended by the claimant-appellant that the driver of the bus in question
was rash and negligent as a result whereof, the accident took place. By reason
of Section 167 of the Act, an injured person had the option either to file a
claim under the Motor Vehicles Act or the Workmen's Compensation Act, if both
the Acts apply. It is, therefore, a case where the claimant could have filed at
his 7 option an application under the Workmen's Compensation Act.
Section 163A provides
for filing of a claim petition where an accident took place by reason of use of
the motor vehicle. It is not necessary to prove any fault on the part of the
driver or the vehicle. The Tribunal in a proceeding arising under Section 166
of the Act is required to hold a full fledged trial. It is required to collect
datas on the basis whereof, the amount of compensation can be determined.
Under Section 163A of
the Act, however, the question of liability and extent of proof thereof are not
justiciable. The Tribunal can determine the amount on the basis of the basic
datas provided therefor.
Explanation appended
to Section 163A of the Act, reads, thus :
Explanation.--For the
purposes of this sub- section, `permanent disability' shall have the same
meaning and extent as in the Workmen's Compensation Act, 1923."
8. The reference to
Workmen's Compensation Act by incorporation was only for the purpose of
sub-section (1) of Section 163A. It was not meant to apply in a case falling
under Section 166 of the Act. Had the provisions of the Workmen's Compensation
Act been applicable, the procedure laid down therein would also apply. For the
purpose of the definition of total disablement as also person who can grant a
certificate there for, namely, a qualified medical practitioner, Section 2(e)
and 2(i) would be attracted. In terms of the 1923 Act, the amount of
compensation is required to be determined as specified in Section 4. The Rules
made in terms of Section 32 of the Act known as Workmen's Compensation Rules
1924, would also be applicable."
8 Ordinarily, the
amount of compensation should be determined having regard to the state of
affairs as was existing on the date on which the cause of action arose. We,
however, do not mean to lay down a law that the subsequent event(s) can never
be taken into consideration but we must also place on record that for the said
purpose another application would not be maintainable subsequently.
6. Appellant in this
case is guilty of suppression of facts. With a view to obtain a just
compensation, he should have placed all relevant materials on record. The
benefits to which he was found to be entitled to pursuant to the order of
retirement on medical invalidation were required to be disclosed before the
Tribunal so as to enable it to arrive at a conclusion as regards the quantum of
`just compensation'. Why those materials have not been placed before the
Tribunal is best known to the appellant. We do not know whether he had received
any other or further amount apart from the amount of pension. We are also not
aware as to whether any of his dependants obtained an appointment on
compassionate ground on medical invalidation, and if such a Scheme had been
framed by the employer. It has also not been disclosed as to at whose instance
he was referred to Civil Surgeon and was not examined by a Medical Board of the
Cantonment Board itself.
7. The Civil Surgeon
of Gwalior, Dr. R.P. Sharma had granted the certificate of disability in favour
of the appellant only on the basis of the X-ray reports.
In his deposition, he
stated:
"It is true that
I myself has not treated the applicant Ramprasad. The certificate given by me
is based on the record of treatment of the applicant, self examination and
X-ray report.
Himself said that
X-ray of the applicant was also carried out. After perusing the X-ray plate
enclosed in the case, I cannot say that whether there is X-ray plate which I
have asked or not.
It is true to say
that in my certificate I have not mentioned the kind and percentage of
disability caused to Ramprasad. It is not necessary to describe the same in
such certificate."
It is accepted that
the appellant obtained treatment from different Orthopedic specialists.
8. It is not a case
where the claimant had an option to file a claim petition either under the Act
or under the 1923 Act.
In Pratap Narain
Singh Deo (supra), whereupon reliance has been placed by Mr. Mody, this Court
was dealing with a case under the 1923 Act. Respondent therein suffered
injuries resulting in amputation of his left arm from the elbow. In that view
of the matter, the Commissioner of Workmen adjudged him to have lost "100
per cent of his earning 10 capacity" as by loss of his left hand he was
evidently rendered unfit for the work of carpenter as the same was not possible
to be done by one hand only. This Court, however, although took notice of the
definition of the term `total disablement' as contained in Section 2(1)(l) of
the 1923 Act but had no occasion to consider the proviso appended thereto,
which reads as under:
"PROVIDED that
permanent total disablement shall be deemed to result from every injury
specified in Part I of Schedule I or from any combination of injuries specified
in Part II thereof where the aggregate percentage of the loss of earning
capacity, as specified in the said Part II against those injuries, amount to
one hundred per cent or more;"
9. There exists a
distinction between a `total disablement' and `total permanent disablement' as
contained in Schedule I Part I of the 1923 Act.
Sufferance of
fracture by itself resulting in shortening of leg to some extent does not come
within the purview of the `permanent total disablement' even under the 1923
Act. It is in that view of the matter, the Tribunal opined:
"For sustaining
permanent disability, the identity card issued to disabled person by Board is
produced by the Applicant as Ex.P-8. On perusal of the said identity card it is
found that in column No.11 the nature and extent of disability it is not made
clear that what kind of disability was found. On the contrary below the 11
next column 40% is written. But for that it is not clearly mentioned that what
is 40% and if it is for disability, the kind of disability is not mentioned. In
such situation on the basis of Ex.
P-8 Identity Card it
cannot be held that Identity Card is issued to the applicant for permanent
disability. Although original identity card in evidence is acceptable but when
regarding permanent disability the position is not clear, in such a case the
doctor who have issued the identity card should be produced in evidence.
But the applicant has
not produce the doctor who have issued the identity card in evidence.
PW-3 Dr. B.P. Purohit,
who had treated the appellant, did not say that the appellant had sustained any
permanent disability.
With regard to the
evidence of PW-6 Dr. R.P. Sharma, Civil Surgeon, the Tribunal opined:
"Although AW-6
R.P. Sharma has stated that on request of the Cantonment Board Officers he has
examined the applicant and have not found him fit for driving. This witness has
stated that after looking to the photo copy of Certificate he has given the
statement. This witness has not made it clear that because of injuries to the
applicant, permanent disability was found in the applicant. The opinion for not
finding him fit for driver, was given by him because bones could not have joint
but he has not made it clear whether joint of bones was possible or not.
Keeping in view the
statement of this witness it can be held that due to non-joint of bones the
applicant was not able to work on the post of driver but it cannot be held that
for the work of driver he has become unfit for the work of driver for ever. As
such on the basis of the 12 aforesaid discussion on the basis of evidence
produced by the applicant it is not proved that because of sustaining injuries
by the applicant in accident the same has caused him permanent
disability."
10. Be that as it may,
the High Court, in our opinion, correctly proceeded on the assumption that the
extent of permanent disability suffered by the appellant is only 40% and not
100%. In that view of the matter alone he was found to have lost earning
capacity to the tune of Rs.2000/- per month having regard to the fact that he
had been getting a salary of Rs.4,847/- per month. Even otherwise, the amount
of pension which he had been receiving and other benefits at the time of his
retirement, which if invested, would have mitigated the quantum of damages and
the same was required to be taken into consideration. The High Court,
therefore, in our opinion, was more than liberal in awarding the said amount of
compensation in favour of the appellant.
The decision in
Grifan v. Sarbjeet Singh & ors. [(2000) 9 SCC 338], relied upon by Mr. Mody
does not lay down any legal principle.
Although therein
medical evidence showed that the claimant had suffered 80% disability, the
overall disability was taken at 50% only; of course, the future prospects have
been taken into consideration, as in that case also the right leg of the
claimant had to be amputated. Some shortening 13 of the legs can be made up
with specially manufactured shoes. A person can even drive a vehicle even with
artificial limbs.
A claim for obtaining
100% compensation for his permanent disability must be supported by reason as
has been held by this Court in National Insurance Co. Ltd. v. Mubasir Ahmed and
Anr. [(2007) 2 SCC 349]. No material has been brought on record by the
appellant in this regard.
11. For the reasons
aforementioned, we do not find any infirmity in the impugned judgment. The
appeal is dismissed accordingly. However, in the facts and circumstances of the
case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.[Cyriac
Joseph]
New
Delhi;
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